NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/10/2010. Plaintiffs,

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1 FILED: NEW YORK COUNTY CLERK 11/10/2010 INDEX NO /2010 SCANNED 0N NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/10/2010. SUPREME COURT OF THE STATE OF NEW YORK GLOBAL ACCESS INVESTMENT ADVISOR LLC, and GLOBAL ACCESS CONSULTORIA FINANCEIRA LTDA., Assigned to: -against- Plaintiffs, ANSWER of PALI CAPITAL, INC. OSCAR LOPES, PALI CAPITAL, INC., BANIF CAYMAN.,LTD, LUIS MARTNO and GUSTAVO SERPA Defendants.... STATE OF NEW YORK COUNTY OF NEW YORK ss: X Defendant Pali Capital Inc. ( Pali ) by and through its employee and attorney, Mitchell Baruchowitz, as its answer for itself alone to Plaintiffs Global Access Investment Advisor LLC )mplaint in 1. Pursuant to New York Civil Practice Law and Rules, De and specifically denies each and every allegation contained in the Complaint cause of action therein. Without limiting the generality of the foregoing, Pali specifically denies that Plaintiffs are entitled to any of the relief requested; that Pali was unjustly enriched; that Pali engaged in any unfair competition; conversion; or aided or abetted conversion; that Pali is guilty of any wrongful conduct or omission; and that any conduct or omissions of Pali caused any injury or damage to Plaintiffs in the amount to be alleged or otherwise. 2. Pali fwther pleads the following separate and additional defenses to the Supreme Court Records OnLine Library - page 1 of 7

2 Complaint. By pleading these defenses, Pali does not in any way agree or concede that it has the burden of proof or persuasion on any of these issues or that it is liable for any claims against it. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) 3. The allegations in the Complaint fail to state a cause of action upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) 4. Plaintiffs claims are barred in whole or in part by the applicable statute of limitations. THIRD AFFIRMATIVE DEFENSE (Estoppel) 5. Claimants claims are barred in whole or in part by the doctrine of estoppel. FORTH AFFIRMATIVE DEFENSE (Waiver) 6. Claimants claims are barred in whole or in part by the doctrine of waiver. FIFTH AFFIRMATIVE DEFENSE (Release) 7. Claimants claims are barred in whole or in part by the doctrine of release. SIXTH AFFIRMATIVE DEFENSE (Failure to Mitigate) 8. Claimants claims are barred in whole or in part by their failure to mitigate the alleged injuries and damages alleged herein. SEVENTH AFFIRMATIVE DEFENSE (Proximate Cause and Contribution by Other Parties) 9. Any losses or damages, if any, suffered by Plaintiffs were proximately caused in Supreme Court Records OnLine Library - page 2 of 7

3 whole or in part by the negligence of other parties in this action, whether served or unserved, named or unnamed, and/or by other persons and/or entities not presently parties to this action. Plaintiffs are therefore barred from recovering any damages from Pali. Alternatively, it would be necessary to determine the proportion and degree of negligence and/or fault of each and every such person and entity so that any judgment that might be rendered against Pali would be reduced not only by the degree of negligence and/or fault found to exist as to Plaintiffs and their partners, employees, agents, and/or other representatives, but further reduced by the total of that degree of negligence and/or fault found to exist as to each and all of the other such parties, named or unnamed, such persons, and/or such entities. EIGTH AFFIRMATIVE DEFENSE (Prevention of Performance) 10. Plaintiffs claims are barred in whole or in part because, to the extent such claims may be valid (which Pali denies), the conduct of Plaintiffs and their partners, employees, agents, and/or other representatives prevented Pali s performance pursuant to the terms of any applicable contracts or agreements. NINTH AFFIRMATIVE DEFENSE (Consent) 11. Plaintiffs claims are barred in whole or in part because, to the extent such claims may be valid (which Pali denies), Plaintiffs consented and/or acquiesced to the alleged improper conduct asserted in the Complaint. TENTH AFFIRMATIVE DEFENSE (Failure to Plead with Specificity) 12. Plaintiffs causes of action fail to plead fraud/omission conversion, etc. with the specificity required under the New York Civil Practice Laws and Rules. Plaintiffs other causes of action also fail to plead the alleged misconduct of Pali with specificity. Supreme Court Records OnLine Library - page 3 of 7

4 ELEVENTH AFFIRMATIVE DEFENSE (Equitable Indemnity) 13. To the extent that Plaintiffs have suffered any harm as a result of any alleged act or omission of Pali, Pali is entitled to equitable indemnity according to comparative fault from other persons and/or entities causing or contribution to such harms. TWELVETH AFFIRMATIVE DEFENSE (Privilege/Justification) 14. Plaintiffs claims are barred in whole or in part because, at all times alleged in the Complaint, Pali s actions and conduct were privileged and justified. THIRTEENTH AFFIRMATIVE DEFENSE (Notice of Reliance on Additional Defenses) 15. Plaintiffs have failed to allege facts sufficient to state a basis for each and every cause of action, and Pali has not completed its investigation and discovery regarding the facts and claims asserted by Plaintiffs. Accordingly, Pali expressly reserves the right to assert such additional affirmative defenses or to supplement the factual or legal bases for the pleaded affirmative defenses as necessary based on its ongoing investigation and discovery. t Supreme Court Records OnLine Library - page 4 of 7

5 WHEREFORE, Pali prays for judgment as follows: A. B. That Plaintiffs take nothing and be afforded no relief against Pali; That Plaintiffs claims against Pali be dismissed with prejudice in their entirety and judgment entered in favor of Pali; C. That Pali be awarded its costs and expenses incurred in this action, including reasonable attorneys fees where appropriate; and D. For all other relief as the Court may deem just and proper. DATED: April 15,2010 Pali Capital Inc. Attorney for Defendant Pali Capital, Inc th Avenue New York, NY T(212) F(212) Supreme Court Records OnLine Library - page 5 of 7

6 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK... X Index No. GLOBAL ACCESS INVESTMENT ADVISOR LLC, and GLOBAL ACCESS CONSULTORIA FINANCEIRA LTDA., Assigned to: -against- Plaintiffs, AFFIDAVIT OF SERVICE BY REGULAR MAIL OSCAR LOPES, PAL1 CAPITAL, INC., BANIF CAYMAN.,LTD, LUIS MARINO and GUSTAVO SERPA Defendants. STATE OF NEW YORK COUNTY OF NEW YORK ss: Mitchell Baruchowitz, being duly sworn, deposes and says: I am over 18 years of age and not a party to this action. On I served upon Plaintiffs, the in this proceeding, by mailing a true copy of the attache osed and properly sealed in a postpaid envelope, which I deposited in an official depository under the exclusive care and custody of the United States Postal Services within the State of New York addressed to the Plaintiffs counsel, Richardson and Patel, LLP, Attn. David Gordon, at 750 Third Avenue, gth Floor, New York New York YA%. Signature: Mitchell Baruchowitz V Sworn to before me this day of TRECIA M. PESSOA Public, State of New Yo& NO. 02PE Quallfied in Nassau County hmission Expires Feb. 25, 20 & Supreme Court Records OnLine Library - page 6 of 7

7 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK... X Index No. GLOBAL ACCESS INVESTMENT ADVISOR LLC, and GLOBAL ACCESS CONSULTORIA FINANCEIRA LTDA., Assigned to: -against- Plaintiffs, OSCAR LOPES, PALI CAPITAL, INC., BANIF CAYMAN.,LTD, LUIS MARINO and GUSTAVO SERPA Defendants. ANSWER OF DEFENDANT PALI CAPITAL INC. I hereby certify, pursuant to 22 NYCRR 130-l.l-a(b) that to the best of my knowledge, information and belief, formed after inquiry reasonable under the circumstances, the presentation of the papers listed above or in connection therein are not frivolous as defined in?22 NYCRR l(c). Mitchell Baruchowitz Attorney for Defendant Pali Capital Inc 'h Avenue New York, NY Tel no: Fax no: Supreme Court Records OnLine Library - page 7 of 7